Practice relating to Rule 66. Non-Hostile Contacts between the Parties to the Conflict

Relations between military commanders in the field of operations are necessary … for military or humanitarian purposes …

It is indispensable that, from both sides, these relations [intercourse between belligerents] be marked by the most scrupulous good faith and that no party takes any advantage from these relations that the other party does not intend to concede. 

…

It is absolutely prohibited for him:

Negotiations between belligerent commanders may be conducted by intermediaries known as parlementaires. The wish to negotiate by parlementaires is frequently indicated by the raising of a white flag, but any other method of communication such as radios may be employed. 

Chapter 1. Introduction to the law of war

…

II. The fundamental principles of IHL

Just as military operations are based on principles concerning attack, defence, withdrawal, etc., the law of armed conflicts contains a set of well-defined principles. These concrete principles reflect the realities of conflicts. They represent a balance between the principle of humanity and military necessity, and they are valid at all times, in all places, and in all circumstances. It is essential that these rules are known by all combatants. They must permanently be taken into consideration in every activity of evaluation, planning, and military training or operation. The following principles can be found throughout the texts of the law of armed conflicts.

…

II.5. Good faith

Good faith between belligerents is a customary principle of the conduct of war. Soldiers must show good faith in their interpretation of the law of armed conflicts. Good faith must also be respected in negotiations between belligerents and in talks with humanitarian organizations.

…

Chapter 4. Behaviour in action

…

II. 2. Temporary ceasefires

There are moments during the conduct of operations – apart from combat, of course – when contacts with the enemy can occur. What is meant here are non-hostile contacts, or relations which the opposing forces can regard as necessary.

Every officer has the competence to conclude a temporary ceasefire of a precise and limited scope. Of course, any decision of that type must receive the approval of the hierarchy. Temporary ceasefires can be extremely useful for evacuating or collecting the wounded on the battlefield, or to allow the evacuation of civilians to a safer place. Ceasefires are limited in time and in scope. It is indispensable that the two parties show complete good faith.

…

IV.3.1. Evacuation of the sick and wounded

The law demands of the parties to the conflict to strive to conclude local arrangements for the evacuation of the wounded, sick, infirm, elderly, children and maternity cases who find themselves in zones under siege or encircled. 

Local interruptions of combat and other arrangements can be concluded between opposing forces. At lower levels, such arrangements can be very simple and concluded orally: voice, radio, bearer of a white flag (flag of truce). At higher levels and for longer lasting interruptions of combat, written agreements shall be concluded. 

Apart from detaching parlementaires, the parties to a conflict may also communicate with each other through the intermediary of Protecting Powers. Protecting Powers are neutral or other states not parties to the conflict which safeguard the rights and interests of a party to the conflict and those of its nationals vis-à-vis an adverse party to the conflict … Particularly the International Committee of the Red Cross may act as a so-called substitute … if the parties to the conflict cannot agree upon the designation of a Protecting Power …

A cease-fire is defined as a temporary interruption of military operations which is limited to a specific area and will normally be agreed upon between the local commanders. It shall regularly serve humanitarian purposes, in particular searching for and collecting the wounded and the shipwrecked, rendering first aid to these persons, and removing civilians. 

Local interruptions of combat and other arrangements can be concluded between opposing forces. At lower levels, such arrangements can be very simple and concluded orally: voice, radio, bearer of a white flag (flag of truce). At higher levels and for longer lasting interruptions of combat, written agreements shall be concluded. 

It is within the legal competence of an officer to arrange a temporary cease-fire for a specific and limited purpose, for example, to permit the collection or evacuation of the wounded. Any such action should be reported to the higher authority. Absolute good faith is required in all such dealings [the arrangement of a cease-fire] with the enemy. 

Local cease-fires and other agreements may be concluded between the opposing forces. At inferior levels, such agreements may be very simple and concluded orally: voice, radio or bearer of a white flag (flag of parlementaires). At superior levels and for long term cease-fires, written agreements are to be concluded. 

Even between the belligerent armies direct contact may sometimes be necessary [for instance to arrange for the collection of the dead or exchange of the wounded] but relations between the belligerent forces are confined to mainly military matters. Occasionally, such relations, for example, the arrangement of a local truce or surrender, may involve political considerations but in view of radio and similar means of communication these matters tend nowadays to be taken up on an inter-government level, avoiding actual negotiations between belligerent commanders.

…

Negotiations between belligerent commanders are normally conducted, at least in the first instance, by intermediaries known as parlementaires. The wish to negotiate by parlementaires is frequently indicated by the raising of a white flag but any other method of communication, eg by radio, may be employed.

…

Any agreement made by belligerent commanders must be scrupulously adhered to … As between combatants, the most usual purpose of contact is to arrange for an armistice or truce, whether for a specific purpose or more generally. Whatever the nature of the arrangement it must be entered into and carried out in good faith.

…

Agreements between belligerents permitting activities between them which are inconsistent with belligerent status are known as cartels. Such an arrangement is voidable by either Party on proof of breach of its terms by the other.

… In addition to any other agreements that may be made between the belligerents or commanders in the field, the Geneva Conventions and [Additional Protocol] I contain a number of provisions recognizing that in the special circumstances specified in these treaties agreements between belligerents may be desirable or necessary. 

…

When direct contacts between commanders or contacts through bearers of flag of truce or similar persons are not possible, the commanders may also ask for cooperation from the Protecting Power (or from intermediaries such as the International Committee of the Red Cross). 

A truce is defined as a temporary interruption of military operations, limited to a specific area and usually concluded between local commanders. It shall regularly serve a humanitarian purpose, to facilitate the removal, the exchange and transport of wounded left on the battlefield, for the evacuation or exchange of wounded and sick from a besieged area, and for the passage of medical and religious personnel and medical equipment on their way to such areas.

…

In addition to parlementaires, the parties in conflict may communicate through the mediation of the Protecting Powers …

If the parties in conflict have not agreed upon the designation of a Protecting Power, the ICRC, or any other impartial and efficient organization, may act as a “substitute”

…

One of the most usual missions of the military observers taking part in peacekeeping operations is to act as intermediaries between the parties to the conflict to facilitate the negotiation and implementation of local agreements. 

2.6. AGREEMENTS WITH THE ADVERSE PARTY

The parties to the conflict can conclude special agreements on specific matters, which are normally negotiated and approved by military bodies, although the involvement of civilian or political bodies is sometimes required. Such agreements may not restrict the protection established by the law of armed conflict for people and property. … Agreements can be made on whatever matters are deemed appropriate. The law of armed conflict does not specify which matters can be the subject of agreements, but expressly provides for the ones considered most relevant.

The military personnel of countries that agree to take part in peacekeeping operations can participate as military observers, with the mission of facilitating the negotiation and observance of local agreements and investigating violations of truces and ceasefires.

2.6.a. FORM OF AGREEMENTS

The parties to a conflict can also make verbal agreements, which are normally local, short-term or emergency agreements, such as local agreements to search for and collect the wounded after armed confrontations or an agreement for the flight of a medical aircraft over a small area controlled by the enemy, etc.

Agreements should be made in writing when they are broader in scope and long term, such as agreements for hospital zones, demilitarized zones, neutralized zones, non-defended localities, the flight of medical aircraft over large areas controlled by the enemy, the evacuation of an area under siege, etc.

2.6.b. AGREEMENTS AFFECTING HOSTILITIES

2.6.b.(1). Ceasefires

A ceasefire is a temporary cessation of military operations limited to a specific area and usually agreed between local commanders. They are normally established for humanitarian reasons to facilitate the removal, exchange and transport of the wounded left on the battlefield, the removal and exchange of the wounded and sick from a besieged or encircled area or for the passage of medical and religious personnel and equipment on their way to such areas.

All duly authorized ceasefires must be observed.

…

2.6.c.(2). Representatives of the Protecting Powers

In addition to the use of parlementaires, the parties to the conflict can also communicate with each other through the Protecting Powers.

2.6.c.(3). Delegates of the International Committee of the Red Cross

If the parties to the conflict do not agree on the designation of a Protecting Power, the ICRC or any other impartial and effective humanitarian organization can act in its place as a “substitute”. 

Commanders of opposing forces may establish agreements at any time, provided that they do not adversely affect the status of persons protected under international law. They can use whatever means they have at their disposal to this end. 

The representatives or delegates of the Protecting Power(s) and delegates of the ICRC or any other international humanitarian organization are entitled to the same status as parlementaires and the personnel of neutral States. 

386. It is on occasions unavoidable – and often convenient – for commanders to open direct communication with the enemy for military purposes. Furthermore, humanity and convenience may at times induce them for special reasons to relax the general prohibition of intercourse between belligerents. …

387. It is essential that in such non-hostile relations the most scrupulous good faith should be observed by both parties, and that no advantage be taken which is not intended to be given by the enemy. 

There is nothing in [Articles 32–34 of the 1907 Hague Regulations] which indicates that a white flag is the only method whereby one belligerent may signify to the other its desire to open communications. In modern conditions of warfare wireless messages and loud-speakers are also used as a means of conveying the wish of one belligerent to communicate with the other. 

420. A suspension of arms is essentially a military convention of very short duration, concluded between commanders of armies, or detachments in order to arrange some local matter of urgency: most frequently to bury the dead, or to collect and succour the wounded, or, occasionally, to exchange prisoners, to permit conferences.

…

497. A cartel, in the wider sense of the term, is issued to signify a convention concluded between belligerents for the purpose of permitting certain kinds of non-hostile intercourse which would otherwise be prevented by the conditions of war. For instance, communication by post, trade in certain commodities, and the like, may be agreed upon by a cartel. In its strictly military sense, however, a cartel means an agreement for the exchange of prisoners of war. 

It is within the legal competence of an officer to arrange for a temporary cease-fire for a specific and limited purpose, for example to permit the collection or evacuation of the wounded … Absolute good faith is required in all such dealings [the arrangement of a cease-fire] with the enemy. 

10.2. Whenever there are non-hostile relations between parties to an armed conflict, those relations must be conducted with the utmost good faith and any agreement reached scrupulously observed. In particular, there should be no abuse of a flag of truce or emblems of identification in dealings between belligerents. 

Humanitarian arrangements to be specifically agreed may include … the provision of medical care or food supplies … An armistice agreement cannot take away the protection afforded to individuals under the law of armed conflict, though it can improve upon that protection. 

452. One belligerent may communicate with another directly by radio, through parlementaires, or in a conference, and indirectly through a Protecting Power, a third State other than a Protecting Power, or the International Committee of the Red Cross. …

453. It is absolutely essential in all nonhostile relations that the most scrupulous good faith shall be observed by both parties, and that no advantage not intended to be given by the adversary shall be taken.

…

458. In current practice, radio messages to the enemy and messages dropped by aircraft are becoming increasingly important as a prelude to conversations between representatives of belligerent forces.

…

469. In its narrower sense, a cartel is an agreement entered into by belligerents for the exchange of prisoners of war. In its broader sense, it is any convention concluded between belligerents for the purpose of arranging or regulating certain kinds of nonhostile intercourse otherwise prohibited by reason of the existence of the war. Both parties to a cartel are in honor bound to observe its provisions with the most scrupulous care, but it is voidable by either party upon definite proof that it has been intentionally violated in an important particular by the other party. 

A ceasefire is an immediate halt or end to hostilities. This military concept refers to both agreements negotiated between the parties to a conflict and the unilateral termination of all military activity by one of the parties, possibly for a specified period of time or in a specified area. 

The need to seek express authority to negotiate an agreement with the enemy … has been reinforced by the erosion, since the end of World War II, of distinctions between political agreements, such as peace treaties, and purely military agreements, such as truces and armistices … [The Air Force Pamphlet] noted that the practice of concluding peace treaties had become rare, and that armistices had often become functional substitutes for peace treaties. The term “cease fire” was increasingly used for agreements that would once have been designated armistices.

…

Modern combat conditions may also make it more difficult to communicate directly with an enemy armed force.

…

US commanders have little inherent authority to negotiate with the enemy, and unauthorized communications with the enemy may be a military offense. The practice of the United States no longer recognizes any clear category of agreements as purely military without political overtones. 

Contacts between opposing armed forces can be taken at any time by the commanders concerned. They can be established by all available technical means.

…

When direct contacts between commanders or contacts through bearers of flag of truce or similar persons are not possible, commanders may also ask for cooperation from the Protecting Power or from intermediaries such as the International Committee of the Red Cross.

Commanders of opposing armed forces may conclude agreements at any time. Such agreements shall not adversely affect the situation of war victims as defined by international treaties.

Very local, short term or urgent agreements can be concluded orally (e.g. local agreements for the search of wounded after combat action, isolated overflight of a small enemy controlled area by medical aircraft).

Long lasting and large scale agreements need to be concluded in writing (e.g. neutralized zones, non-defended localities, overflight of a large enemy controlled area by medical aircraft, agreement for the evacuation of a besieged area). For such agreements, inspiration can be taken from detailed provisions foreseen by the law of war (e.g. hospital zones, demilitarized and non-defended zones and localities). 

Customary international law recognises the white flag as symbolising a request to cease-fire, negotiate, or surrender. An adversary displaying a white flag should be permitted the opportunity to surrender, or to communicate a request for cease-fire or negotiation. 

International law recognises the white flag as symbolising a request to cease-fire, negotiate, or surrender. An adversary displaying a white flag should be permitted the opportunity to communicate a willingness to surrender, or to communicate a request for cease-fire or negotiation. 

It is prohibited to soldiers in combat:

The showing of a white flag is not necessarily an expression of an intent to surrender. Furthermore, it is not necessarily applicable to all opposing forces in an area. The white flag can also mean that opposing forces wish to temporarily cease hostilities to talk or negotiate. 

1. Negotiations between belligerent commanders may be conducted by intermediaries known as parlementaires. The wish to negotiate by parlementaires is frequently indicated by the raising of a white flag, but any other method of communication such as radios may be employed.

2. Parlementaires normally operate under a white flag of truce. A parlementaire may be accompanied by other personnel agreed upon by the commanders involved …

…

4. To fire intentionally upon the white flag carried by a parlementaire is a war crime. 

[T]he showing of a white flag is not necessarily an expression of an intent to surrender. Furthermore it is not necessarily applicable to all opposing forces in an area. The white flag can also mean that opposing forces wish to temporarily cease hostilities to talk or negotiate. 

Chapter 3. Identification

…

III.4. The white flag (or flag of truce)

The white flag is a customary element of war, and remains widely in use until this day. The white flag is used to indicate the intention to negotiate and to protect the persons who negotiate. It does not necessarily indicate – as it is often believed – an intention to surrender. The negotiation with an enemy can have concrete military motives: organization of a ceasefire in order to collect the dead and injured, or in order to exchange prisoners …

…

Chapter 4. Behaviour in action

…

II.4. The white flag (the flag of truce)

We have already spoken of this element of customary law; let us now see how it can be used during operations.

The white flag signifies “I want to enter into communication or negotiate with you”, and not necessarily “I want to surrender”. How does one use the white flag? The party which uses the white flag must cease firing. As soon as it has done so, the other side must do the same. Enemy forces then can in certain cases show their surrender in an evident manner, by throwing away their weapons and raising their arms. 

Parlementaires, i.e. those who request to meet with the Commanding Officer of the enemy unit to discuss a ceasefire or to surrender, are protected by the “White flag”.

IT IS PROHIBITED to deceive the enemy by raising a white flag and then opening fire.

IT IS PROHIBITED to carry out any act of violence against Parlementaires and their escort, unless they carry out a hostile act first.  [emphasis in original]

The white flag indicates that the party flying the flag wishes to parley. This party must cease firing. The bearer of the white flag, and those accompanying this person, have a right to physical inviolability. The receiving party need not cease fire over the whole sector. The white flag is also accepted as the customary indication of a wish to surrender. 

1. When a person is authorised by one Party to enter into communications with the adverse Party; if used, the white flag should be carried by the parlementaire or an accompanying individual so as to be clearly visible.

2. If an element of the armed forces wishes to surrender to an adverse Party a white flag, when held so as to be clearly visible, may be utilized to facilitate a peaceful surrender. 

The hoisting of a white flag means that a belligerent wishes to communicate with the enemy, either for the purpose of surrender or for some other purposes. Hoisting the white flag by a small number of soldiers usually [expresses] the wish to surrender; in the case of a large unit it is usually the expression of a wish to conduct negotiations. 

…

- When combatants surrender, they must clearly indicate this intention, eg by raising their arms and discarding their weapons. Remember, a white flag is NOT only a sign of surrender, but also a sign of a wish to negotiate.  [emphasis in original]

I remain fair:

- I shall use the … white flag … in accordance with the rules (cf. Rule 10).These also protect my comrades and me;

…

I am familiar with the international protective signs and their meaning. 

- The White Flag clearly indicates willingness to negotiate, sometimes even willingness to surrender;

- Respect bearers of the White Flag. They are not allowed to be attacked.

- Attacks against bearers of the White Flag;

- Improper use of the White Flag in order to achieve a military advantage. 

From time immemorial a white flag has been used as a signal by an armed force which wishes to open communications with the enemy. This is the only meaning which the flag possesses in international law. The hoisting of a white flag, therefore, means in itself nothing else than one party is asked whether it will receive a communication from the other. It may indicate merely that the party which hoists it wishes to make an arrangement for the suspension of arms for some purpose; but it may also mean that the party wishes to negotiate for surrender. Everything depends on the circumstances and conditions of the particular case. For instance, in practice, the white flag has come to indicate surrender if hoisted by individual soldiers or a small party in the course of an action. Great vigilance is always necessary, for the question in every case is whether the hoisting of the white flag was authorised by the commander. 

10.5. From time immemorial, a white flag has been used as a signal of a desire to open communications with the enemy. This is the only meaning that the white flag possesses in the law of armed conflict. Wilful abuse of a white flag that results in death or serious injury is a grave breach of Additional Protocol I.

10.5.1. The display of a white flag means only that one party is asked whether it will receive a communication from the other. In some cases it may also mean that the party that displays it wishes to make an arrangement for a temporary suspension of hostilities for a purpose, such as the evacuation of the wounded, but in other cases it may mean that the party wishes to negotiate for surrender. Everything depends on the circumstances and conditions of the particular case. For instance, in practice, the white flag has come to indicate surrender if displayed by individual soldiers or a small party in the course of an action.

10.5.2. Those who display a white flag should cease firing until the invitation has been answered. Any abuse of a white flag is likely to be a war crime. Great vigilance must, however, always be displayed in dealing with enemy forces that have displayed a white flag, because other enemy soldiers in the vicinity may be unaware of the display of the white flag and continue firing. This is especially likely where the decision to display a white flag was taken not by the enemy commander on behalf of the entire force under his command but by individual soldiers. 

In the past, the normal means of initiating negotiations between belligerents has been the display of a white flag …

The white flag, when used by troops, indicates a desire to communicate with the enemy. The hoisting of a white flag has no other signification in international law. It may indicate that the party hoisting it desires to open communication with a view to an armistice or a surrender. If hoisted in action by an individual soldier or a small party, it may signify merely the surrender of that soldier or party. It is essential, therefore, to determine with reasonable certainty that the flag is shown by actual authority of the enemy commander before basing important action upon that assumption. 

The white flag has traditionally indicated a desire to communicate with the enemy and may indicate more particularly, depending upon the situation, a willingness to surrender. It raises expectations that the particular struggle is at an end or close to an end since the only proper use of the flag of truce or white flag is to communicate to the enemy a desire to negotiate. 

The following shall be punished with military arrest or political prison for one to four years:

…

Any person who advances without weapons and displaying the white flag shall be considered a parlementaire; he enjoys an absolute immunity and it is prohibited to attack him or retain him prisoner. 

1. Negotiations between belligerent commanders may be conducted by intermediaries known as parlementaires. The wish to negotiate by parlementaires is frequently indicated by the raising of a white flag, but any other method of communication such as radios may be employed.

2. Parlementaires normally operate under a white flag of truce. A parlementaire may be accompanied by other personnel agreed upon by the commanders involved. 

A cessation of hostilities is regularly preceded by negotiations with the adversary. In the area of operations the parties to the conflict frequently use parlementaires for this purpose … Parlementaires are persons authorized by one party to the conflict to enter into negotiations with the adversary. 

a person authorized by a military belligerent authority to enter into direct communication with the enemy; the scope of his powers is usually to conclude specific agreements to be executed on the battlefield. The parlementaire … must advance bearing a visible distinctive sign consisting of a white flag. 

[P]arlementaires are persons authorized by their command to enter into communication with the enemy command and coming with a white flag. The parlementaire as well as persons who may accompany him (the trumpeter, bugler or drummer, the flag-bearer and the interpreter) have a right to inviolability. 

A person to be regarded as a parlementaire must be authorised by one of the belligerents to enter into communication with the other and must present himself under cover of a white flag. The authorisation [for a parlementaire to enter into negotiations] should be in writing and be signed by the sending commander. 

Negotiations between belligerent commanders are normally conducted, at least in the first instance, by an intermediary, known technically as a “parlementaire”, normally operating under a flag of truce, who has been authorized in writing under the signature of the sending commander. 

The commander to whom a parlementaire is sent is not in all cases and under all conditions obliged to receive him … He may likewise declare beforehand that he will not receive parlementaires during a certain period. 

There is no obligation upon the adverse party to receive a parlementaire. The adverse party does not have to cease combat. The belligerent may not fire upon the parlementaire, white flag or party. The parlementaire and those who are in his or her party are entitled to complete inviolability, so long as they do nothing to abuse this protection, or to take advantage of their protected position. 

II.4. The white flag (the flag of truce)

…

The white flag signifies “I want to enter into communication or negotiate with you”, and not necessarily “I want to surrender”. How does one use the white flag? The party which uses the white flag must cease firing. As soon as it has done so, the other side must do the same. Enemy forces then can in certain cases show their surrender in an evident manner, by throwing away their weapons and raising their arms. A surrender is generally accepted and the enemy is treated consequently, but there is no obligation to receive a delegation of parlementaires. 

Refusal to enter into negotiations with the enemy does not violate international humanitarian law, however in any case the commander shall ensure the inviolability of the parlementaire and the persons who accompany him. 

The commander to whom a parlementaire is sent is not obliged to receive him in every case. There may be a movement in progress the success of which depends on secrecy, or owing to the state of the defences, it may be considered undesirable to allow an envoy to approach a besieged locality. In direct contrast, however, to a former rule, it is now no longer permissible – except in cases of reprisals for abuses of the flag of truce – for a belligerent to declare beforehand, even for a stated period, that he will not receive parlementaires. 

The commander to whom a parlementaire is sent is not obliged to receive him in every case. However, it is no longer permissible for a belligerent to declare beforehand, even for a stated period, that he will not receive parlementaires. However, the commander is entitled to take all steps necessary to protect the safety of his position or unit and to prevent the parlementaire from taking advantage of his visit to secure information. 

The present rule is that a belligerent may not declare beforehand, even for a specified period – except in case of reprisal for abuses of the flag of truce – that he will not receive parlementaires. An unnecessary repetition of visits need not be allowed. 

The party to the conflict to which a parlementaire is sent is not obliged to receive him in any case.

It is forbidden for the parties to the conflict to announce [beforehand] that they will not receive a parlementaire …

It is allowed to refuse to receive a parlementaire in order for him not to see or find out something about movements or regrouping of troops or the like. It is also allowed to refuse to receive a parlementaire as a measure of reprisals, if the party that sends the parlementaire had previously abused the flag of parlementaires.